NFIB v. Sebelius and the Constitutional Debate over Federalism

27 Pages Posted: 18 Mar 2015 Last revised: 2 Mar 2018

See all articles by Ilya Somin

Ilya Somin

George Mason University - Antonin Scalia Law School

Date Written: 2014


The litigation that culminated in the Supreme Court’s ruling in NFIB v. Sebelius represented a clash between two opposing visions of constitutional federalism: one contending that courts should allow Congress nearly unlimited power over anything that might potentially affect the national economy, and another that advocates strong judicial enforcement of constitutional limits on federal authority. This clash can be traced through all three arguments offered to justify the Affordable Care Act individual health insurance mandate: claims that it was authorized under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause. It also lies at the heart of the otherwise distinct debate over the constitutionality of the ACA’s Medicaid expansion.

Efforts to justify the mandate or the Medicaid expansion without giving Congress virtually unlimited power fall apart under close inspection. The same is true of Chief Justice John Roberts’ opinion holding that a modified version of the individual mandate is authorized by the Tax Clause, though not by the other two clauses cited by the government.

Neither side in the conflict over constitutional federalism won a decisive victory in NFIB. Events since that ruling demonstrate that the debate between them is likely to continue for a long time to come.

NFIB is noteworthy for the way it made clear the depths of the division between the two visions of federalism. It may also have been the first major Supreme Court case in which the blogosphere played a major role in developing legal arguments and shaping public debate. Both the conflict over federalism and the role of the blogosphere in shaping legal debate are likely to recur in future cases.

Keywords: Affordable Care Act, congressional authority, constitutional law, federalism, health insurance mandate, judicial enforcement, legal blogs, limited government, New Deal, NFIB v. Sebelius, public debate, Supreme Court

JEL Classification: K32

Suggested Citation

Somin, Ilya, NFIB v. Sebelius and the Constitutional Debate over Federalism (2014). Oklahoma City University Law Review, Vol. 39, No. 3, pp. 415-440, 2014 (William Brennan Lecture 2014), George Mason Law & Economics Research Paper No. 15-09, Available at SSRN:

Ilya Somin (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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